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WALSH v. NATIONAL WESTMINSTER BANCORP.

December 15, 1995

JOAN M. WALSH, Plaintiff,
v.
NATIONAL WESTMINSTER BANCORP., INC., and NATIONAL WESTMINSTER BANK, USA, and JOHN DOES 1-5, Defendants.



The opinion of the court was delivered by: KOELTL

 The complaint in this action sets forth eight causes of action. The plaintiff Joan M. Walsh, brings two claims against the defendants, whom I will refer to collectively as NatWest, pursuant to Title VII of the Civil Rights Act, 42 U.S.C. Section 2000(e): first, sexual harassment; second, retaliation.

 Each Title VII claim is accompanied by claims brought under the New York State Human Rights Law, Executive Law Sections 296, 297(1)(e), and the Administrative Code of the City of New York section 8-107. The complaint states claims for both negligent and intentional infliction of emotional distress although, as was made clear during oral argument, the plaintiff has withdrawn the seventh cause of action for negligent infliction of emotional distress.

 NatWest brings this motion for partial summary judgment Pursuant to Federal Rule of Civil Procedure 56(b) seeking the dismissal of the plaintiff's claim for sexual harassment, the state city claims associated that claim and the intentional infliction of emotional distress claim.

 I have reviewed all of the papers, I have listened to argument by all counsel. NatWest alleges that it is entitled to summary judgment on these claims as a matter of law, and that there are no disputed genuine issues of material fact that require resolution. In support of its motion NatWest argues that summary judgment should be granted in its favor for the following reasons:

 First, the plaintiff cannot establish a prima facie case of sexual harassment. The plaintiff's claim for sexual harassment against NatWest is a claim based on hostile environment rather than quid pro quo. See Tomka v. Seiler Corp., 66 F.3d 1295, 1304-05, Second Circuit, 1959, citing Meritor Savings Bank against Vinson, 477 U.S. 57 at 64-65, 91 L. Ed. 2d 49, 106 S. Ct. 2399, 1986.

 Neither the complaint nor any of the plaintiff's pleadings allege a theory of quid pro quo sexual harassment with the exception of the opposition papers submitted on this motion. See memorandum in opposition at 4 n. 3.

 But as the defendant points out in its reply brief, the plaintiff explicitly denied that she claimed quid pro quo sexual harassment in her responsive 3(g) statement. See memo in reply at 7.

 Second, alternatively, NatWest argues that the court lacks jurisdiction to consider the plaintiff's sexual harassment claim because she did not include this allegation in her EEOC charge.

 Third, in the event that the Title VII claim for sexual harassment is disposed of, NatWest argues that the court should decline supplemental jurisdiction over the state city claims in light of the unsettled questions of state and local law that predominate on those claims.

 And fourth, NatWest argues that the plaintiff has failed to allege facts sufficient to support a claim for intentional infliction of emotional distress.

 Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law." Federal Rule of Civil Procedure 56(c). See also Celotex Corp. v. Catrett, 477 U.S. 317 at 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548, (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 at 247-248, 91 L. Ed. 2d 202, 106 S. Ct. 2505, (1986), 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505; Gallo v. Prudential Residential Servs. Limited Partnership, 22 F.3d 1219 at 1223, Second Circuit, 1994.

 In determining whether summary judgment is appropriate, the court must resolve all ambiguities and draw all reasonable inferences again the moving parties. See Matsushita Elec. Indus. Co. Ltd. against Zenith Radio Corporation, 475 U.S. 574 at 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348, (1986), 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348, citing U.S. v. Diebold, Inc., 369 U.S. 654 at 655, 8 L. Ed. 2d 176, 82 S. Ct. 993, 1962. See also Gallo, 22 F.3d at 1223.

 Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v TRM Copy Centers Corp, 43 F.3d 29 at 37, Second Circuit, 1994.

 As the Court of Appeals very recently reiterated in reversing a grant of summary judgment dismissing a pregnancy discrimination case: "The district court's function is to decide whether any factual issues exist that would warrant a trial, not to resolve them in favor of either party." Quaratino v. Tiffany & Co, 71 F.3d 58, 1995 Westlaw 68665, Second Circuit 1995, quoting Gallo, 22 F.3d at 1224.

 NatWest argues that it is entitled to summary judgment on Walsh's claim for sexual harassment because the plaintiff is unable to establish a prima facie case. First, NatWest contends that the court does not have jurisdiction over this claim because no claim for sexual harassment was included in the charge Walsh filed with EEOC and that, therefore, Walsh has not yet exhausted her administrative remedies. While the requirement is not jurisdictional, see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-98, 71 L. Ed. 2d 234, 102 S. Ct. 1127, 1982, it is clear that the exhaustion requirement is an essential part of Title VII's statutory scheme that must be observed. See Butts v. the City of New York, Department of Housing Preservation And Development, 990 F.2d 1397, 1401, Second Circuit 1993.

 Second, NatWest argues that even if the court has jurisdiction, Walsh cannot establish NatWest's liability because NatWest took prompt and adequate remedial action by firing the person about whom Walsh complained.

 In Title VII cases, the district court's jurisdiction only over those claims either included in an EEOC charge or that are "reasonably related" to the allegations in plaintiff's EEOC complaint, Butts, 990 F.2d at 1401. "This exhaustion element is an essential element of Title VII's statutory scheme, which encourages parties to settle disputes through conciliation and voluntary compliance. Id. This is the reason I referred during oral argument to the requirement as an exhaustion requirement.

 In Butts, the Court of Appeals noted that it recognized three circumstances that satisfy the reasonable relationship test:

 One, loose pleadings such that the court must take into account the scope of EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.

 2. Claims for retaliation for filing a timely EEOC charge, and

 3. Instances of discrimination carried out in precisely the same manner alleged in the EEOC charge. Butts, 990 F.2d at 1402-1403.

 In this case, NatWest argues that the EEOC charge filed by Walsh is limited to her claims of retaliation for her earlier complaint about Martin Feuer. NatWest asserts that the EEOC charge merely refers to the sexual harassment complaint as the source of the retaliation about which Walsh complains.

 In contrast, NatWest argues the charge contains an orderly recitation of alleged retaliatory actions. Further NatWest notes that the box indicating "Retaliation" is marked and the one for "Sex" is not.

 NatWest also refers to the affidavit sworn by the plaintiff in support of her EEOC charge arguing that the affidavit is also directed at retaliatory conduct and ...


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